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20. Matters Outside the Uniform Evidence Acts

Other evidentiary provisions

20.75 There are other evidentiary provisions contained in state and territory criminal procedures or evidence legislation which might be included in the uniform Evidence Acts.

20.76 For example, the Criminal Procedure Act 1986 (NSW) contains provisions dealing with the admissibility of admissions by suspects in criminal proceedings. Section 281 of the Criminal Procedure Act provides that evidence of certain admissions made in the course of official questioning are not admissible unless a tape recording is available to the court, and that the hearsay rule and the opinion rule of the uniform Evidence Acts do not prevent the admission and use of such recordings. Other jurisdictions have similar provisions.[106]

20.77 The Criminal Procedure Act also contains detailed provisions dealing with the compellability of spouses to give evidence in certain proceedings,[107] evidentiary aspects of certain depositions and written statements,[108] sexual assault communications privilege,[109] and warnings to be given to juries in relation to lack of complaint in sexual offence proceedings.[110]

20.78 The Evidence Act 2001 (Tas) also contains a range of provisions that are not present in either the Commonwealth or New South Wales legislation—although, in some instances, equivalent provisions may be found elsewhere in those jurisdictions’ statute books. The additional Tasmanian provisions include those dealing with:

procedures for proving certain matters, which are not provided for in the other uniform Evidence Acts;[111]

the admissibility of depositions on one charge in the trial of another;[112]

the powers of a court or judge to order examination of witnesses on interrogatories or otherwise.[114]

20.79 The evidence legislation of other states or territories also contains other kinds of evidentiary provisions that might be incorporated in the uniform Evidence Acts. For example, Queensland, Western Australia and the Northern Territory all have evidence legislation which provides, in similar terms, for evidentiary certificates with respect to DNA evidence used in criminal proceedings.[115]

The Commissions’ view

20.80 Other than those mentioned elsewhere,[116] the Commissions received few other comments supporting the enactment in the uniform Evidence Acts of provisions already contained in state or territory criminal procedures or other legislation. Accordingly, the Commissions make no recommendation for change in this regard.

20.81 The Commissions remain mindful that such provisions should only be incorporated into the uniform Evidence Acts if uniformity can be achieved in their terms. Should a great number of non-uniform provisions be placed into the Acts, there is little incentive for jurisdictions to maintain uniformity on other existing provisions, and the overarching purpose of the Acts will be lost. In the interests of continued uniformity, Chapter 2 recommends that SCAG adopt an Intergovernmental Agreement providing for a procedure whereby proposed amendments to the uniform Evidence Acts in any particular jurisdiction must be considered and approved by SCAG before implementation.[117]

[116] For example, in relation to confidential communications privilege (see Ch 15); warnings in jury trials involving the evidence of child witnesses (see Ch 18); expert evidence in relation to the development and behaviour of children (see Ch 9).